/m/yankees

Reader Comments and Retorts

Statements posted here are those of our readers and do not represent the BaseballThinkFactory. Names are provided by the poster and are not verified. We ask that posters follow our submission policy. Please report any inappropriate comments.

“I’ll take the Fifth,” Bosch replied to Tacopina, according to an informed source. (The Fifth Amendment of the U.S. constitution says that a witness need not incriminate himself, though its applicability in a private hearing is questionable.)

The larger point is simply that Bosch would have been a fool to admit to criminal activity in the hearing.

As to Bosch's credibility problems, I'm not sure how much the arbitrator will care about cocaine use per se. Does cocaine use go towards whether someone is lying about something else? Not to my mind, unless ARod's team can point to that as a special reason for why Bosch needed money or something. What is relevant, though, is that MLB compensated Bosch for his testimony, in various ways. I'm not sure whether ARod's team has been able to show that Bosch has lied about things (unlike, say, with McNamee), which is where credibility problems can surely arise. The cocaine use doesn't help but more relevant is that MLB compensated Bosch, and if I'm the arbitrator I am damned sure going to look for independent evidence that corroborates what Bosch is saying. That is what I think this case comes down to: not so much what Bosch is saying, but whether he can back any of it up (with emails, with other witnesses, etc.) -- and whether ARod's team can refute much of it.

If Bosch cannot back his testimony up then I don't think his testimony alone will carry the day, and I think the arbitrator will find 0 games for ARod. People are excluding 0 games as a possible outcome; I wouldn't bet on 0 games -- I'd bet on 50-65 -- but I think 0 games is quite plausible.

If Bosch cannot back his testimony up then I don't think his testimony alone will carry the day, and I think the arbitrator will find 0 games for ARod. People are excluding 0 games as a possible outcome; I wouldn't bet on 0 games -- I'd bet on 50-65 -- but I think 0 games is quite plausible.

IANAL and so forth,. but it does sound to me increasingly like 0 is much more of a probability than the full 211, which I always thought was DOA.

if arod did not test positive for PEDs, and there's no proof that he knowingly took illegal supplements, as opposed to legal ones (which exist), or illegal ones that never resulted in a positive test and that he was told by this purported doctor were legal, does that still get him suspended?

the calculus here does not quite add up for me. even before getting to the fact that the star witness was the ringleader of the criminal enterprise, and that MLBs actions appear to have shielded him from criminal liability and put them in conflict with local law enforcement, the narrative, to me, does not seem to add up to anything greater than selig wanting to hammer arods ass.

if arod did not test positive for PEDs, and there's no proof that he knowingly took illegal supplements, as opposed to legal ones (which exist), or illegal ones that never resulted in a positive test and that he was told by this purported doctor were legal, does that still get him suspended?

Yes. The athletes are the ones responsible for what is in their body, even including suspensions for supplements that turned out to be tainted. Any other way of doing it basically allows you to do it so long as you have plausible deniability.

#12 is absolutely correct; there is a strict liability standard for use; it need not be knowing or intentional as long as MLB can prove possession or use. That being said, the evidence of possession or use that is in the public sphere (which obviously is a tiny slice of what Horowitz receives) relies very heavily on a single witness who has credibility issues.

Yes. The athletes are the ones responsible for what is in their body, even including suspensions for supplements that turned out to be tainted. Any other way of doing it basically allows you to do it so long as you have plausible deniability.

if i could just ask, where does my question go wrong:

if arod did not test positive for PEDs, and there's no proof that he knowingly took illegal supplements, as opposed to legal ones (which exist), or illegal ones that never resulted in a positive test and that he was told by this purported doctor were legal, does that still get him suspended?

if you took a tainted supplement and never test positive for taking that supplement, how can you be suspended afterwards?

if you took a tainted supplement and never test positive for taking that supplement, how can you be suspended afterwards?

Via testimony or other documentary evidence that you took the supplement and that it contained prohibited substances. That evidence would probably have to be pretty strong, but having the quasi-medical professional who allegedly provided it testify about what the substance was and that you took it, all other things being equal, could suffice.

#12 is absolutely correct; there is a strict liability standard for use; it need not be knowing or intentional as long as MLB can prove possession or use.

No. #12 is incorrect, as is your post. It's true that per Section 8.A.B.1. of the JDA, "The Commissioner's Office is not required to otherwise establish intent, fault, negligence, or knowing use of a Prohibited Substance on the Player's part." But that only speaks to the fact that MLB does not need to show those things to meet its initial burden. It does not speak to the affirmative defense available to a player:

Section 8.A.B.1.3: Affirmative Defense: A Player is not in violation of the Program if the presence of the Prohibited Substance in his test result was not due to his fault or negligence. The Player has the burden of establishing this defense. A Player cannot satisfy his burden by merely denying that he intentionally used a Prohibited Substance; the Player must provide objective evidence in support of his denial.

Section 8.A.B.1.3: Affirmative Defense: A Player is not in violation of the Program if the presence of the Prohibited Substance in his test result was not due to his fault or negligence. The Player has the burden of establishing this defense. A Player cannot satisfy his burden by merely denying that he intentionally used a Prohibited Substance; the Player must provide objective evidence in support of his denial.

if arod did not test positive for PEDs, and there's no proof that he knowingly took illegal supplements, as opposed to legal ones (which exist), or illegal ones that never resulted in a positive test and that he was told by this purported doctor were legal, does that still get him suspended?

Section 7A allows discipline for a non-analytical positive:

"A Player who tests positive for a Performance Enhancing Substance, or otherwise violates the Program through the use or possession of a Performance Enhancing Substance, will be subject to the discipline set forth below."

MLB has to show that ARod used or possessed the illegal substance. Now, as dlf says, MLB can establish that through the quack's testimony, if the testimony is credible.

Now, I presume ARod can argue that if he used or possessed the illegal substance, he did not do so knowingly. "Bosch told me he was giving me vitamin pills." Then it becomes a matter of who to believe. Although the affirmative defense I quoted above seems on its face applies only to challenging a positive test result. But if the arbitrator concludes that ARod really thought he was taking vitamins, he can overturn the suspension. Section 8.A. states:

"The Arbitration Panel shall have jurisdiction to review any determination that the player has violated the program []. Any dispute regarding the level of discipline within the ranges set forth in Section 7 is also subject to review by the Arbitration Panel and any such review shall include whether the level of discipline imposed was supported by just cause."

A finding that ARod really thought he was getting vitamins would force the arbitrator to overturn the discipline, in my view, since the discipline would not be supported by just cause.

The agreement is poorly written, but I do not recall seeing a strict liability standard for a non-analytical positive (use or possession) in there, which cannot be rebutted. If someone can point me to it, please do.

"A Player who tests positive for a Performance Enhancing Substance, or otherwise violates the Program through the use or possession of a Performance Enhancing Substance, will be subject to the discipline set forth below."

hmmm. doesn't that mean that they have to actually catch him with the drugs in his possession, as opposed to just assert that he had possession of the drugs at some point in time?

As to Bosch's credibility problems, I'm not sure how much the arbitrator will care about cocaine use per se. Does cocaine use go towards whether someone is lying about something else? Not to my mind, unless ARod's team can point to that as a special reason for why Bosch needed money or something.

Maybe they're going to say that Bosch sold out A-Rod for drug money to use in feeding his addiction?

Hey, you live in the heat and humidity of Miami and you'll be carrying two bags of talcum powder with you everywhere too. Chafing's a #####.

The agreement is poorly written, but I do not recall seeing a strict liability standard for a non-analytical positive (use or possession) in there, which cannot be rebutted. If someone can point me to it, please do.

Probably the closest would be the "conviction for possession/use" ... at least it's hard to see what defense the player could put forward. Of course ARod hasn't been convicted of anything.

I wonder how much this thing is going to get re-written after this debacle. Like you say, it's a pretty terribly written document -- testing is really the only issue addressed with any thoroughness. I was kinda hoping they'd "charge" him with "participation" just to find out what would happen.

There are 2 issues here. Did Arod take steroids, if yes, he takes his 50 game suspension and will be done with it.

The 2nd issue, which is the main issue really, is what Arod has done to get the additional 161 games, which is unprecedented in MLB history and not part of the JDA even if one accepts that Selig has discretion to apply any suspension he wants under the CBA.
Have not really heard much that is very credible on what the evidence there is for this. This is what the fight is all about.

Selig not being required to testify on the rationale for the 161 games suspension is really a huge gaffe by the arbitrator if he upholds the 211 game suspension, since the arbitrator will have a hard time explaining this in court. This leads me to believe the arbitrator has already decided on a lesser penalty.

The arbitrator is between a rock and a hard place. If he rules no suspension, MLB fires him, and if he upholds the 211 game suspension, he gets fired by the MLBPA and faces a court hearing charging he was biased in favor of MLB, and a guilty verdict hurts his future job prospects. My money is on 100 games. Arbitrator keeps his job, avoids court, and Arod may drop the other suit. Both parties can claim a victory of sort, and Arod can deny the PED charges but play the good guy in dropping the suit in the best interest of baseball. LOL

The real winner here is Arods legal team, they get a nice pay day. Arod may recover some of his legal costs/suspension losses with a book on the whole affair after he retires, perhaps written in partnership with his attorney. But with a net worth over 300 million and over 60 million in future MLB earnings, Arod can afford to lose a few bucks.

PTodd, I think you basically end up in the right place here but I quibble with some of your reasoning:

There are 2 issues here. Did Arod take steroids, if yes, he takes his 50 game suspension and will be done with it.

The 2nd issue, which is the main issue really, is what Arod has done to get the additional 161 games, which is unprecedented in MLB history and not part of the JDA even if one accepts that Selig has discretion to apply any suspension he wants under the CBA.
Have not really heard much that is very credible on what the evidence there is for this. This is what the fight is all about.

Well, yes, except that when MLB suspended ARod it whined in its statement that ARod had multiple offenses of use/possession, so I have to imagine they are going to try in vain to argue to Horowitz that ARod should get more than 50 games for that. I find it a wholly frivolous argument.

Selig not being required to testify on the rationale for the 161 games suspension is really a huge gaffe by the arbitrator if he upholds the 211 game suspension, since the arbitrator will have a hard time explaining this in court. This leads me to believe the arbitrator has already decided on a lesser penalty.

Eh. I think this is something that will fall within the arbitrator's discretion. I doubt ARod's legal team will be able to make much hay of this in challenging this specific decision - but, well, maybe. This _is_ kind of an odd situation, in that a suspension on the order of 200+ games for a first offense is just totally bizarre.

MLB overreached. Plain and simple, and they will have egg on their faces after this. Assuming all there are are use/possession/"obstruction" charges here (and not, e.g., something like "participation in the sale/distribution"), if ARod gets much more than 65 games -- if he gets over 100 games -- I am happy to say right now that I will have been shown to be fantastically wrong on this issue.

The arbitrator is between a rock and a hard place. If he rules no suspension, MLB fires him, and if he upholds the 211 game suspension, he gets fired by the MLBPA and faces a court hearing charging he was biased in favor of MLB, and a guilty verdict hurts his future job prospects. My money is on 100 games. Arbitrator keeps his job, avoids court, and Arod may drop the other suit. Both parties can claim a victory of sort, and Arod can deny the PED charges but play the good guy in dropping the suit in the best interest of baseball. LOL

I'm not sure you're right on the process here, but regardless I think you're approaching this from the wrong angle. The arbitrator isn't supposed to worry about what happens to him if he rules a certain way, and I simply don't think he will. He will do his job honorably and professionally. He will rule not based on his personal interests, but on his duties. No matter what his ruling is I will not be questioning is integrity. Perhaps his reasoning, but not his integrity.

His job is not to split the baby; his job is to render an impartial judgment based on the facts and the CBA/JDA and on precedent and on the law. Anyone can split the baby. If that was the process, we could flip a coin, we could have a chimpanzee pull a lever.

Sorry to go off topic, but I recently learned that there is a very talented and successful Nashville songwriter who happens to be gay. His name is Shane McAnally. If I was still my 14-year-old self, I would have already snickered myself to death over this. (And, yes, I know it's pronounced MACK-uh-nal-ee.)

#16 I don't think it's contested that JC Romero tested positive due to a tainted supplement (Andro not listed) and he was still suspended.

I thought of this too. There are two possible explanations -- I have no idea if either is true, I'm just speculating.

1) I don't remember when the latest version of the JDA was adopted but has this defense clause always been there?

2) It's not clear what the standard of evidence is to succeed with this claim although the language leads me to think it's supposed to be quite high. I would guess "it was a tainted supplement" is trotted out often. And you might even be able to show the supplements is tainted. But that still doesn't prove that you were taking that supplement and not something else. If I was doing roids, I think I'd keep a nice supply of a tainted supplement around. Anyway, it's possible the arbitrator (and this would have been Das who ruled in Braun's favor) didn't feel Romero met the evidence threshold ... even though he may have believed him.

According to Wiki, Romero sued the manufacturer, GNC and the shop way back in May 2009 -- anybody know how that turned out?